Tamil Nadu

South Chennai

CC/316/2017

J.Srinivasan - Complainant(s)

Versus

The Manager, M/s.Royal Sundaram General Insurance Co Ltd., - Opp.Party(s)

P.K.Ilavazhagan

21 Dec 2022

ORDER

                                              Date of Complaint Filed : 08.09.2017

                                             Date of Reservation      : 07.12.2022

                                             Date of Order               : 21.12.2022

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (SOUTH), CHENNAI-3.

 

PRESENT:    TMT. B. JIJAA, M.L.,                                                  : PRESIDENT

                       THIRU. T.R. SIVAKUMHAR, B.A., B.L.,                 :  MEMBER  I 

                       THIRU. S. NANDAGOPALAN., B.Sc., MBA.,         : MEMBER II

 

CONSUMER COMPLAINT No. 316/2017

WEDNESDAY, THE 21^stDAY OF DECEMBER 2022

J. Srinivasan,

S/o Janakiraman,

Old No.7/81, Hyder Garden Main Street,

Mangalapuram,

Chennai 600 012.                                                                                                                  …   Complainant

 

-Vs-

Manager,

M/s Royalsundaram General Insurance Co.Ltd.,

No.21, Pattuloss Road,

Chennai 600 002.                                                                                                               ...   Opposite Party

 

******

Counsel for the Complainant             : M/s. D. Magarajan

Counsel for the Opposite Party          : M/s. M.B. Gopalan Associates

 

        On perusal of records and having treated the written arguments of the Complainant and the Opposite Party as oral arguments, on endorsement made by the Complainant and the Opposite Party, we delivered the following:

ORDER

Pronounced by the President Tmt. B. Jijaa, M.L.,

1. The Complainant has filed this complaint as against the Opposite Party under section 12 of the Consumer Protection Act, 1986 and prays to direct the Opposite Party to pay a sum of Rs.2,00,000/- in favour of the Complainant and to pay costs.

2. The averments of complaint in brief are as follows:-

       The Complainant is the owner of the vehicle bearing Reg. No.TN 05 AP 9295 and meticulously maintaining the records  of the vehicle such as Registration Certificate, Insurance Policy and Driving license of the driver of the vehicle. The vehicle was duly insured with the Opposite party vide Policy No.VTW 00 81156000100 covering the period from 07.09.2016 to 06.09.2017 and the Policy was in force on the date of loss. The Complainant parked his two wheeler bearing Reg. No.TN 05 AP 9295 at Konnur High Road and P.E. Koil Street Junction, Ayyanavaram, Chennai near TASMAC Shop on 13.11.2016 at 7.00 pm. After completing his work at TASMAC Shop about 10 pm, he found that his vehicle was missing. On due and diligent search the said vehicle was not traceable. He informed the loss to opposite party on 14.11.2016 and the Ayyanavaram Police on 30.11.2016 who had given CSR No.455/2016. But the claim was reported to the Opposite party on 14.11.2016. Therefore he lodged a Police Complaint to the Ayyanavaram Police Station, on 22.01.2017. Based on his complaint the said Police Registered a case in FIR No.184 of 2017 under Section 379 of Indian Penal Code. The said FIR has been forwarded by the Police and the complainant was informed through Police Notice dated 08.06.2017 in this regard. The Opposite party informed the complainant, by their letter dated 21.11.2016 to produce 1) RC 2) Insurance Policy 3) FIR 4) Non traceable Certificate of the lost vehicle. 5) Final Report 6) Original Keys and 7) Last Service Bill and it was stated that with reference to the claim, from the claim papers that there has been misrepresentation of fact with regard to NCB declared in the Policy and expressed their inability to entertain the claim. It is submitted that the reason for rejection of the claim is unreasonable without properly perusing the documents submitted by the complainant. The Complainant had lost his two wheeler and unable to attend even for his duty and domestic works without the vehicle. The complainant is suffering every day to attend his work. The loss of amenities would hamper his work which render him become unemployed. Due to delay and failure to consider the bonafide claim of the complainant he is burdened with heavy monetary loss, mental agony and transport expenses. It is total dereliction of duty and deficiency of service to the consumer like complainant. It is unfair trade practice on the part of the Opposite party. The complainant submits that his vehicle was never met with any accident nor he claimed any Insurance amount/claim from any other Insurance company. Hence the complaint.

3. Written Version filed by the Opposite Party in brief are as follows:-

         The Complainant insured his motorcycle TN 05 AP 9295 with the Opposite Party for IDV of Rs.33,260/- for the period 07.09.2016 to 06.09.2017 which was issued subject to various terms and conditions and on No Claim Bonus (NCB) of 50% as the Complainant did not reveal the correct NCB under previous insurance with ICICI Lombard General Insurance Co. Ltd. The Complainant has conveniently failed to file the Policy in full. The Opposite Party submitted that the Policy was issued on a substantial discount in premium of 50% towards No Claim Bonus since the Complainant did not disclose that he was entitled only to 25%. If the Complainant had disclosed the same, Opposite Party would not have issued the Policy for lower premium by granting 50% discount, but charged higher premium. Thus the Complainant had obtained the Policy from this Opposite Party by misrepresenting NCB entitlement and secured reduced premium. The Policy is void due to such suppression of material facts. The Complainant on 14.11.2016 reported a claim under the Policy for alleged theft of the vehicle from a public parking place where he had left his vehicle on 13.11.2016. On verification of the claim, it was found that the Complainant had lodged FIR on 22.01.2017. Even CSR complaint was admittedly given on 30.11.2019, more than 17 days after the loss. The Complainant had committed gross delay in intimation of theft to Police as well as the Opposite Party in breach of Condition No.1 of the Policy. The failure of the Complainant to immediately notify, especially the Police, amounts to fundamental breach which prejudices the rights of the parties. Therefore the Opposite Party would have no liability for the claim by reason of Condition No.1 read with Condition No.9. Hence prayed to dismiss the complaint.

4.    The Complainant submitted his Proof Affidavit and Written Arguments. On the side of the Complainant, documents were marked as Ex.A-1 to Ex.A-9. The Opposite Party submitted its Proof Affidavit and Written Arguments. On the side of the Opposite Party, document Ex.B-1 was marked.  

Points for Consideration

1. Whether there is deficiency in service on the part of the Opposite Party?

2. Whether the Complainant is entitled for reliefs claimed?

3. To what other reliefs the Complainant is entitled to?

Point No.1

        The undisputed facts are that the Complainant is the owner of the vehicle bearing Registration No.TN 05 AP 9295 which was duly insured with the Opposite Party vide Policy No. VTW 0081156000100 for the period from 07.09.2016 to 06.09.2017, as per Ex.A-7 and that during validity of the policy the said vehicle went missing.  The dispute arose when the claim of the Complainant was repudiated by the Opposite Party on the ground of misrepresentaion of fact with regard to vehicle claim history under the previous policy.

The contention of the Complainant is that, when the Complainant had parked the vehicle at Konnur High Road, P.E Koil Street Junction, Aynavaram, Chennai near Tasmac shop on 13.11.2016, at about 10.00 p.m. the vehicle was missing. Immediately on 14.11.2016 the Complainant had informed the Opposite Party about the loss of the vehicle to the Aynavaram Police, who had given CSR No.455/2016 on 30.11.2016. Based on his complaint the Police had registered an FIR NO.184 of 2017, Ex.A-3 under section 379 of IPC. While so the Opposite Party by their letter dated 21.11.2016, Ex.A-1 had sought for certain documents, which the Complainant had produced. However, the Opposite Party by their letter dated 26.03.2017, Ex.A-5 had rejected the claim of the Complainant stating that there was misrepresentation of fact with regard to vehicle claim history under the previous policy. 

The Opposite Party contended that the Complainant had insured his Motor cycle TN 05 AP 9295 with the Opposite Party for IDV of Rs.33,260/- for the period from 07.09.2016 to 06.09.2017 which was issued subject to various terms and conditions and on no claim bonus of 50% as the Complainant did not reveal the correct NCB under previous Insurance with ICICI Lombard General Insurance Company Limited. Further contended that the policy was issued on the substantial discount in premium of 50% towards No Claim Bonus. Since the Complainant did not disclose that he was entitled only to 25% thus the Complainant had obtained the policy from this Opposite Party by misrepresenting the NCB entitlement and secured reduced premium. Further submitted that as per the conditions of the Policy notice had to be given in writing to the Insurance Company immediately upon the occurrence of any accidental loss or damage and in case of theft the insured shall give immediate notice to the Police and cooperate with the company. The Complainant on 14.11.2016 reported the claim under the policy for the alleged theft of the vehicle on 13.11.2016 and on verification of the claim it was found that the Complainant had lodged FIR on 22.01.2017. Even CSR complaint was admittedly given on 30.11.2016 which was more than 17 days after the loss.

Though the Opposite Party contend that there was gross delay in giving information to the Opposite Party and the police which is breach of condition No.1 of the Policy and that the Opposite Party has no liability by reason of breach of condition No.1 read with condition No.9 of the policy, the fact remains that for the loss of vehicle on 13.11.2016 the Complainant had informed the Opposite Party and had submitted his claim under the policy the very next day i.e., on 14.11.2016. However there was a few days of delay in lodging complaint before the police. It is pertinent to note that the rejection of claim by the Opposite Party was not on the ground of delay in informing the Opposite Party and /or the police but on the ground of misrepresentation of fact with regard to vehicle claim history under the previous policy.

The Opposite Parties relied on the following judgments

1. Jaina Construction Company Vs. Oriental Insurance company Limited and another reported in (2022) 4 Supreme Court Cases 527 wherein it was observed that when the Complainant had lodged FIR immediately after the theft of the vehicle the insurance company could not have repudiated the claim merely on the ground that there was a delay in intimating the insurance company about the occurrence of the theft, upholding that the Complainant was entitled to the insured amount on non-standard basis at 75% of the IDV.
2. Jay Madhavja Vs United India Insurance Company Limited reported in 2015 SCC online NCDRC 3889 wherein reference was made to the Hon’ble Supreme Court’s Authority in Oriental Insurance Company Limited Vs. Parvesh Chander Chadha, Civil Appeal NO.6739/2020 decided on 17.08.2010 where it was held that on account of delayed intimation the Insurance Company cannot be saddled with the liability to pay compensation as the Complainant failed to comply with the terms of the policy.
3. Jaswinder Kaur Vs. ICICI Lombard General Insurance Co Limited reported in 2018 SCC Online NCDRC 519, wherein reference was made to the circular of the IRDA as well as the Judgment of the Apex Court in Jagjit Singh Vs. Cholamandalam MS General Limited and AmlenduSahu Vs. Oriental Insurance Company, Civil appeal No.2703 of 2020 decided on 25.03.2010 and allowed the insurance claim for settlement upto 75% of the claim if some condition of the motor policy is violated.
4. Lakhwinder Singh Vs. Oriental Insurance Company Limited, 2015 SCC Online NCDRC 3826 wherein on violation of terms and conditions of policy by not intimating to police and the Insurance Company immediately, the repudiation of claim was upheld.
5. TATA AIG General Insurance Company Limited VsAjith Singh, 2018 SCC Online NCDRC 1243 wherein it was held that as there was violation of condition No.1 and 5 of the Insurance Policy by the Complainant the Insurance Claim can be settled up to 75% of the claim.

        Considering the facts and circumstances of the case and the judgments relied upon by the Opposite Party this Commission is of the considered view that in the present case there is no delay in intimating the Opposite Party about the theft of the vehicle, as the Complainant had informed about the theft of the vehicle on 14.11.2017, the next day after the vehicle went missing. Hence, the stand taken by the Opposite that there was a delay in intimating the Opposite Party and the police is not acceptable. Moreover,  the repudiation of the claim by the Opposite Party was not due to the delay in intimation but due to misrepresentation of fact with regard to the vehicle claim history under the previous policy which fact of misrepresentation as alleged was  not proved by the Opposite Party and as an after thought in the written version the Opposite Party has come with a new reason of delay in intimating the theft of the vehicle which is not acceptable. Hence the act of the Opposite Party in repudiating the claim of the Complainant during the subsistence of the insurance policy, without valid reason amounts to deficiency in service. Accordingly Point No.1 is answered.

Point No.2 and 3:

        As  discussed and decided in Point No.1 that  the Opposite Party had committed deficiency in service by repudiating the claim of the Complainant, the Opposite Party is directed to pay the IDV value of Rs.33,260/- with interest @9% p.a from the date of complaint till date of realization and to pay a sum of Rs.20,000/- as compensation for the deficiency in service and mental agony caused to the Complainant along with cost of Rs.5,000/-.The Complainant is not entitled for any other relief(s). Accordingly Point No.2 and 3 are answered.

In the result, the complaint is allowed in part. The Opposite Party is directed to pay the IDV value of Rs.33,260/- (Rupees Thirty Three Thousand Two Hundred and Sixty Only) with interest @9% p.a from the date of complaint till date of the order and to pay a sum of Rs.20,000/- (Rupees Twenty Thousand Only) as compensation for the deficiency in service and mental agony caused to the Complainant along with cost of Rs.5,000/-(Rupees Five Thousand Only), within 8 weeks from the date receipt of this order, failing which the above amount of Rs.33,260/- shall carry interest at the rate of 9% p.a from the date of receipt of this order till the date of realisation. 

          In the result this complaint is allowed.        

Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on 21^st of December 2022. 

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                 B.JIJAA

         MEMBER II                       MEMBER I                        PRESIDENT

 

List of documents filed on the side of the Complainant:-

 

Ex.A1	21.11.2016	Letter from Opposite Party
Ex.A2	30.11.2016	CSR Ayyanavram Police Station
Ex.A3	22.01.2017	First information Report
Ex.A4	08.06.2017	Police Notice to the Complainant
Ex.A5	26.03.2017	Claim Rejection Letter
Ex.A6	14.08.2017	Screen Report of Vehicle
Ex.A7	06.09.2016	Insurance Policy
Ex.A8	17.07.2013	Previous Insurance Policy
Ex.A9	20.05.2002	Driving Licence

 

List of documents filed on the side of the Opposite Party:-

 

Ex.B1

06.09.2016

Insurance Policy with terms and conditions

 

 

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                   B.JIJAA

         MEMBER II                       MEMBER I                         PRESIDENT